positions at no loss of salary or benefits. Indeed, rather than
raising any inference of discriminatory intent, the facts as to
these two employees are probative of a lack of discriminatory
C. Discriminatory Remarks
The Court of Appeals has held that the bias of a
non-decisionmaker is insufficient to prove an illegal motivation
for an employer's discharge. McLee, 109 F.3d at 136
(allegations of bias against supervisor who was not consulted
about a termination decision "provide no basis for imputing to
[the decisionmaker] an invidious motivation for the discharge");
see also Legendre v. Chase Manhattan Bank, 1996 WL 514874, at
*6 (S.D.N.Y. Sept.10, 1996) (alleged discriminatory remark made
prior to plaintiff's discharge insufficient to establish an
inference of discrimination without "competent evidence" that the
coordinator played a role in plaintiff's discharge); Jaffe v.
Aetna Cas. & Sur. Co., 1996 WL 337268, at *6 (S.D.N.Y. June 19,
1996) (granting summary judgment in Title VII discharge case and
noting "[m]ost significantly, the offending comment in the
instant case was not even made by a decisionmaker"), aff'd,
113 F.3d 1229, 1997 WL 289862 (2d Cir. 1997).
Plaintiffs allege that Ray Pearce and Eric Rosen, both
managers, made age-related discriminatory remarks. Even if taken
as true, this does not support their claim because Pearce and
Rosen were uninvolved in the decisionmaking process. Plaintiffs
also allege that the Publisher of the New York Times, Arthur
Sulzberger, Jr. made a discriminatory ageist remark. First, this
comment appears to be rhetorical hyperbole made in the context of
discussing a diversification program at The Times. Plaintiff
Moccia stated in her deposition that Sulzberger has been known to
say "strange things, joking things." (Lauri Aff., Ex. M, p. 133).
Second, there is disputed testimony as to if he did, in fact,
refer to "white males over 40", but, because this is a motion for
summary judgment, I resolve all ambiguities in favor of the
nonmoving party. Third, despite Sulzberger's high position at The
Times, he was not one of the decisionmakers in this selection
process. Each plaintiff has stated in his or her individual
deposition that the four Decisionmakers did not make any ageist
remarks. Thus, as the court in Burrell v. Bentsen stated,
"`stray remarks in the workplace,' `statements by
non-decisionmakers,' and `statements by decisionmakers unrelated
to the decisional process' are not by themselves sufficient to
satisfy plaintiff's burden in proving pretext." 1993 WL 535076,
at *8 (S.D.N.Y. Dec.21, 1993) (quoting Radabaugh v. Zip Feed
Mills, Inc., 997 F.2d 444, 448 (8th Cir. 1993), aff'd,
50 F.3d 3 (2d Cir. 1995)); see also Mauter v. Hardy Corp.,
825 F.2d 1554, 1558 (11th Cir. 1987) (company Vice President's ageist
remark insufficient to show pretext because he "played no part in
the decision to terminate the plaintiff"). In sum, I find
plaintiffs have failed to proffer any evidence which, if believed
by the jury, would permit the finding that plaintiffs'
terminations were age-based.
For the reasons detailed above, defendant's motion for summary
judgment is granted.
The Clerk of the Court shall mark this action closed and all
pending motions denied as moot.